Customs Tariff (Transitional Product Specific Safeguard
Duty) Rules, 2002
[M.F. (D.R.) Notification No. 34/2002-Cus. (N.T.), dated
11-6-2002 ]
In exercise of the powers conferred by
sub-section (6) of section 8C of the Customs Tariff Act, 1975 (51
of 1975) the Central Government hereby makes the following rules,
namely :-
1. Short title and commencement. -(i)
These rules may be called the Customs Tariff (Transitional
Product Specific Safeguard Duty) Rules, 2002.
(iii) They shall come into force on the date of their
publication in the Official Gazette.
2. Definitions. - In these rules, unless
the context otherwise requires, -
(a) "Act" means the
Customs Tariff Act, 1975 (51 of 1975);
(b) "Critical
circumstances" means circumstances in which there is clear
evidence that imports have taken place in such increased
quantities and under such circumstances as to cause or threaten
to cause market disruption to the domestic industry and delay in
imposition of provisional safeguard duty would cause irreparable
damage to the domestic industry;
(c) "Increased
quantity" includes increase in imports whether in absolute terms
or relative to domestic production;
(d) "Interested
Party" includes -
(i) any exporter or foreign
producer or the importer of an article subjected to investigation
for purposes of imposition of safeguard duty under section 8C of
the Act or a trade or business association, majority of the
members of which are producers, exporters or importers of such an
article;
(ii) the government of the
People's Republic of China; and
(iii) a producer of the like
article or directly competitive article in India or a trade or
business association, a majority of members of which produce or
trade the like article or directly competitive article in India;
(e) "like article"
means an article which is identical or alike in all respects to
the article under investigation under section 8C of the Act;
(f) "Provisional
Duty" means a safeguard duty imposed under sub-section (2) of
section 8C of the Act;
(g) all words and
expressions used and not defined in these rules shall have the
meanings respectively assigned to them in the Act.
3. Appointment of Director General
(Specific Safeguard).- (1) The Central Government may, by
notification in the official Gazette, appoint an officer not
below the rank of a Joint Secretary to the Government of India or
such other officer as it may think fit as the Director General
(Specific Safeguard) hereinafter referred to as the Director
General for the purposes of these rules.
(2) The Central Government may
provide to the Director General the services of such other
persons and such other facilities as it deems fit.
4. Duties of the Director General.-
Subject to the provisions of these rules, it shall be the duty of
the Director General -
(1) to investigate the existence
of "market disruption" or "threat of market disruption" to
domestic industry as a consequence of increased import of an
article into India;
(2) to identify the article
liable for safeguard duty under section 8C of the Act;
(3) to submit his findings,
provisional or otherwise to the Central Government as to the
existence of "market disruption" or "threat of market disruption"
to the domestic industry consequent upon increased import of an
article from the People's Republic of China;
(4) to recommend, -
(i) the amount
of duty which if levied would be adequate to remove the "market
disruption" or "threat of market disruption" to the domestic
industry;
(ii) the duration of
levy of safeguard duty under section 8C of the Act;
(5) to review the need for
continuance of such safeguard duty.
5. Initiation of investigation.- (1)
Except as provided in sub-rule (4), the Director General shall,
on receipt of a written application by or on behalf of the
domestic producer of like article or directly competitive
article, initiate an investigation to determine the existence of
"market disruption" or "threat of market disruption" to the
domestic industry, caused by the import of an article in such
increased quantities, absolute or relative to domestic
production.
(2) An application under sub-rule
(1) shall be in the form as may be specified by the Director
General in this behalf and such application shall be supported by
evidence of-
(i) increased
imports;
(ii) "market
disruption" or "threat of market disruption" to the domestic
industry; and
(iii) a causal link between
imports and the alleged "market disruption" or "threat of market
disruption".
(3) The Director General shall
not initiate an investigation pursuant to an application made
under sub-rule (1) unless he examines the accuracy and adequacy
of the evidence provided in the application and satisfies himself
that there is sufficient evidence regarding-
(a) increased
imports;
(b) "market
disruption" or "threat of market disruption"; and
(c) a causal link
between increased imports and "alleged market disruption" or
"threat of market disruption".
(4) Notwithstanding anything contained in sub-rule (1), the
Director General may initiate an investigation suo motu if
he is satisfied with the information received from any
Commissioner of Customs appointed under the Customs Act, 1962 (52
of 1962) or any other source that sufficient evidence exists as
referred to in clause (a), clause (b) and clause (c) of sub-rule
(3).
6. Principles Governing Investigations. -
(1) The Director General shall, after he has decided to initiate
investigation to determine the "market disruption" or "threat of
market disruption" to domestic industry, consequent upon the
increased import of an article into India, issue a public notice
notifying his decision thereto. The public notice shall, inter
alia, contain adequate information on the following, namely :-
(i) the article
involved;
(ii) the date of
initiation of the investigation;
(iii) a summary statement
of the facts on which the allegation of "market disruption" or
"threat of market disruption" is based;
(iv) reasons for initiation
of investigation.
(v) the address to
which representations by interested parties should be directed;
and
(vi) the time-limits
allowed to interested parties for making their views known.
(2) A copy of the public notice
shall be forwarded by the Director General to the Central
Government in the Ministry dealing with Commerce and other
Ministries concerned, known exporters of the article the
increased import of which has been alleged to cause or threaten
to cause "market disruption" to the domestic industry, the
government of the People's Republic of China and other interested
parties.
(3) The Director General shall
also provide a copy of the application referred to in sub-rule
(1) of rule 5 to -
(i) the known
exporters, or the concerned trade association;
(ii) the government
of the People's Republic of China, and
(iii) the Central
Government in the Ministry dealing with Commerce :
Provided that the Director General
shall also make available a copy of the application, upon request
in writing, to any other interested party.
(4) The Director General may
issue a notice calling for any information in such form as may be
specified by him from the exporters, foreign producers and
government of the People's Republic of China and such information
shall be furnished by them in writing within thirty days from the
date of receipt of the notice or within such extended period as
the Director General may allow on sufficient cause being shown.
Explanation. - For the purpose of this rule the public
notice and other documents shall be deemed to have been received
one week after the date on which these documents were sent by the
Director General by registered post or transmitted to the
appropriate diplomatic representative of the People's Republic of
China.
(5) The Director General shall
also provide opportunity to the industrial user of the article
under investigation, and to representative consumer organisations
in cases where the article is commonly sold at retail level to
furnish information which is relevant to the investigation.
(6) The Director General may
allow an interested party or its representative to present the
information relevant to investigation orally but such oral
information shall be taken into consideration by the Director
General only when it is subsequently submitted in writing.
(7) The Director General shall
make available the evidence presented to him by one interested
party to the other interested parties, participating in the
investigation.
(8) In case where an interested
party refuses access to or otherwise does not provide necessary
information within a reasonable period or significantly impedes
the investigation, the Director General may record his findings
on the basis of the facts available to him and make such
recommendations to the Central Government as he deems fit under
such circumstances.
7. Confidential information.-
(1) Notwithstanding anything contained in sub-rules (1),
(3) and (7) of rule 6, sub-rule (2) of rule 9 and sub-rule (5) of
rule 11, any information which is by nature confidential or which
is provided on a confidential basis shall, upon cause being
shown, be treated as such by the Director General and shall not
be disclosed without specific authorisation of the party
providing such information.
(2) The Director General may
require the parties providing information on confidential basis
to furnish non-confidential summary thereof and if, in the
opinion of the party providing such information, such information
cannot be summarised, such party may submit to the Director
General a statement of reasons why summarisation is not possible.
(3) Notwithstanding anything
contained in sub-rule (2), if the Director General is satisfied
that the request for confidentiality is not warranted or the
supplier of the information is unwilling either to make the
information public or to authorise its disclosure in a
generalised or summary form, he may disregard such information
unless it is demonstrated to his satisfaction from appropriate
sources that such information is correct.
8. Determination of "market disruption"
or "threat of market disruption". -The Director General shall
determine "market disruption" or "threat of market disruption" to
the domestic industry taking into account, inter alia, the
principles laid down in Annexure to these rules.
9. Preliminary findings.- (1) The
Director General shall proceed expeditiously with the conduct of
the investigation and in critical circumstances, he may record a
preliminary findings regarding "market disruption" or "threat of
market disruption".
(2) The Director General shall
issue a public notice regarding his preliminary findings.
(3) The Director General shall
send a copy of the public notice to the Central Government in the
Ministry dealing with Commerce and in the Ministry dealing with
Finance.
10. Levy of provisional duty.- The
Central Government may in accordance with the provisions of
sub-section (2) of section 8C of the Act, impose a provisional
duty on the basis of the preliminary findings of the Director
General :
Provided that such duty shall remain in
force only for a period not exceeding two hundred days from the
date on which it was imposed.
11. Final findings.-(1) The
Director General shall, within 8 months from the date of
initiation of the investigation or within such extended period as
the Central Government may allow, determine whether, -
(a) the increased
imports of the article under investigation under section 8C of
the Act has caused or threatened to cause "market disruption" to
the domestic industry; and
(b) a causal link
exists between the increased imports and "market disruption" or
"threat of market disruption".
(2) The Director General shall
also give his recommendation regarding the amount of duty which,
if levied, would be adequate to prevent or remedy "market
disruption".
(3) The Director General shall
also make his recommendations regarding the duration of levy of
duty.
(4) The final findings, if
affirmative, shall contain all information on the matter of facts
and law and reasons which have led to the conclusion.
(5) The Director General shall
issue a public notice recording his final findings.
(6) The Director General shall
send a copy of the public notice regarding his final findings to
the Central Government in the Ministry dealing with Commerce and
in the Ministry dealing with Finance.
12. Levy of duty. - (1) The Central
Government may impose, by a notification in the Official Gazette,
upon importation into India of the article covered under the
final findings, a safeguard duty under section 8C of the Act not
exceeding the amount which has been found adequate to prevent or
remedy "market disruption".
(2) If the final finding of the Director General is
negative, that is contrary to the prima facie evidence on
the basis of which the investigation under section 8C of the Act
was initiated, the Central Government shall within thirty days of
the publication of final findings by the Director General under
rule 11, withdraw the provisional duty, if any, imposed under
sub-section (2) of section 8C of the Act.
13. Imposition of duty on
non-discriminatory basis.- Any safeguard duty under section 8C
of the Act imposed under rule 10 or rule 12 shall be on a
non-discriminatory basis and applicable to all imports of such
article from the People's Republic of China.
14. Date of commencement of duty.-
(1) The safeguard duty levied under rule 10 or rule 12
shall take effect from the date of publication of the
notification in the Official Gazette imposing such duty.
(2) Notwithstanding anything
contained in sub-rule (1), where a provisional duty under
sub-section (2) of section 8C of the Act has been levied and
where the Director General has recorded a finding that increased
imports have caused or threaten to cause "market disruption" to
domestic industry, it shall be specified in the notification
under sub-rule (1) that such safeguard duty shall take effect
from the date of levy of the provisional duty.
15. Refund of duty.- If the safeguard
duty imposed after conclusion of the investigation under section
8C of the Act is lower than the provisional duty under
sub-section (2) of that section already imposed and collected,
the differential shall be refunded to the importer.
16. Duration.- (1) The duty levied
under rule 12 shall be only for such period of time as may be
necessary to prevent or remedy "market disruption".
(2) Notwithstanding anything
contained in sub-rule (1) of this rule, the duty levied under
rule 12 shall, unless revoked earlier, cease to have effect on
the expiry of four years from the date of its imposition :
Provided that if the Central Government
is of the opinion that the article on which such safeguard duty
is imposed continues to be imposed into India, from People's
Republic of China, in such increased quantities so as to cause or
threatening to cause "market disruption" to domestic industry and
the safeguard duty should continue to be imposed, it may extend
the period of such imposition :
Provided further that in no case such
safeguard duty shall continue to be imposed beyond a period of
ten years from the date on which such duty was first imposed.
17. Review.- (1) The Director
General shall, from time to time, review the need for continued
imposition of the safeguard duty imported under section 8C of the
Act and shall, if he is satisfied on the basis of information
received by him that -
(i) such
safeguard duty is necessary to prevent or remedy "market
disruption", recommend to the Central Government for the
continued imposition of that duty;
(ii) there is no
justification for the continued imposition of such safeguard
duty, recommend to the Central Government for its withdrawal :
Provided that where the period of imposition
of such safeguard duty exceeds three years, the Director General
shall review the situation not later than the mid-term of such
imposition, and, if appropriate, recommend for withdrawal of such
safeguard duty or for the variation of that duty.
(2) Any review initiated under
sub-rule (1) shall be concluded within a period not exceeding 8
months from the date of initiation of such review or within such
extended period as the Central Government may allow.
(3) The provisions of rules 5, 6, 7 and 11 shall mutatis
mutandis apply in the case of review.
ANNEXURE
(See rule 8)
(1) In the investigation to
determine whether increased imports have caused or are
threatening to cause "market disruption" to a domestic industry,
the Director General shall evaluate all relevant factors of an
objective and quantifiable nature having a bearing on the
situation of that industry, in particular, the rate and amount of
the increase in imports of the article concerned in absolute and
relative terms, the share of the domestic market taken by
increased imports, changes in the level of sales, production,
productivity, capacity utilization, profits and losses, and
employment.
(2) The determination referred to
in paragraph (1) shall not be made unless the investigation
demonstrates, on the basis of objective evidence, the existence
of the causal link between increased imports of the article
concerned and "market disruption" or threat thereof. When factors
other than increased imports are causing "market disruption" to
the domestic industry at the same time, such "market disruption"
shall not be attributed to increased imports. In such case, the
Director General may refer the complaint to the authority for
anti-dumping or countervailing duty investigations, as
appropriate.
Commissioner of Customs (General), New Delhi
appointed as Director General (Specific Safeguard). - In
exercise of the powers conferred by sub-rule (1) of rule 3 of the
Customs Tariff (Transitional Product Specific Safeguard Duty)
Rules, 2002, the Central Government hereby appoints Shri R.K.
Gupta, Commissioner of Customs (General), New Delhi as the
Director General (Specific Safeguard) for the purposes of the
said rules.
[Notification No. 42/2002-Cus. (N.T.),
dated 28-6-2002]
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